CIVIL SERVICE COMMISSION, CITY AND COUNTY OF DENVER, COLORADO. RICK GUZMAN (05008) Officer in the Classified Service of the Denver Police Department,

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1 CIVIL SERVICE COMMISSION, CITY AND COUNTY OF DENVER, COLORADO Case No. 12 CSC 01 In re the matter of: RICK GUZMAN (05008) Officer in the Classified Service of the Denver Police Department, Petitioner. FINDINGS, CONCLUSIONS, DECISION AND ORDER An evidentiary hearing in the above captioned matter was held on June 5, 2012 before Timothy R. Arnold, Civil Service Hearing Officer. The Petitioner Rick Guzman ( Petitioner ) testified and was represented by David J. Bruno, Esq. The Respondent, Honorable Alex J. Martinez Manager of Safety ( the Manager or Respondent ) testified and was represented by Jennifer L. Jacobson, Denver Assistant City Attorney. ACTION APPEALED Petitioner appeals the Disciplinary Order of Disciplinary Action by Alex J. Martinez, Manager of Safety, dated January 17, 2012, specifically the conclusion that Petitioner violated RR-306: Unnecessary Force, and the imposition of a Suspension of four (4) days without pay. 1 ISSUES Whether Petitioner Rick Guzman violated RR-306 Unnecessary Force as set forth in the Departmental Order of Disciplinary Action dated January 17, 2012? Whether the disciplinary sanction of a four days suspension is appropriate? THE HEARING AND EVIDENCE The Hearing, Presentation of Evidence, and Evidentiary Rulings: All witnesses were sworn or affirmed before testifying in this case. 1 Officer Guzman s reprimand for failure to make, file, or complete a report is not appealable pursuant to Commission Rule 12 3 (A). 1

2 Respondent presented the testimony of Officer Rick Guzman, Captain John Lamb, Manager of Safety Alex J. Martinez in support of Respondent s case. Officer Guzman testified that he did not recall the events involving his call to the KMart Store located at Broadway and Alameda on August 4, Respondent asked to introduce a DVD, containing a video, which Respondent asserted showed the incident. Exhibit 2 (C). IAB File No In the later testimony of Captain Lamb and by Petitioner s Exhibit A, it was shown that the video was forwarded to the Department by anonymous letter (Petitioner s Exhibit 1), which was originally submitted to Fox 31 News. The City Attorney asked that the video be admitted into evidence but the Petitioner objected. At that point the Hearing Officer allowed admission of the Exhibit for the limited purpose of showing that the Manager of Safety reviewed it in connection with his review as part of his process of issuance of the Departmental Disciplinary Order (Respondent Exhibit A). The DVD was not admitted at that time for the purpose of showing the truth of what occurred on August 4, Under a continuing objection by Petitioner, the video was played and Officer Guzman and other witnesses were allowed to testify as to what they observed. He acknowledged that he appeared in the video and that the scene appeared to be a detainee room at the Kmart with which he was familiar. Throughout the playing of the video he insisted he did not recall the events that the video was portraying and testified that he had no independent memory of the incident. Officer Guzman was not cross examined at that time. Captain John Lamb testified next. He stated that he had been the Deputy Chief of Police for the previous four years and that he conducted disciplinary hearings on behalf of the Chief of Police, including Officer Guzman s hearing. He testified that he gave Officer Guzman the opportunity to speak at the hearing but Officer Guzman chose not to. He testified that he relied primarily on the DVD video, Exhibit 2 C, IAB File No The video was again played under the continuing objection of Petitioner. He pointed out that the video had no audio. He testified that in the video as Officer Guzman was removing the handcuffs placed on the suspect by K Mart loss prevention employees and attempting to replace them with his police handcuffs, something occurred between Officer Guzman and the suspect. He observed Officer Guzman grab the suspect by the neck and push him into the wall. He thought there may have been an exchange of words but without audio he could not be sure. He then testified that he observed Officer Guzman grab the suspect by his hair and pull him to the floor. He testified that he knew of nothing in the Denver Police Department training that included pushing a suspect into the wall like he observed on the video. Captain Lamb was questioned about Exhibit 5, the Denver Police Department Use of Force Policy, Operation Manual On voir dire he conceded that the policy contained in the Exhibit had been revised in March of He could not testify as to which portions of the policy existed in He did not know if the Exhibit contained the same policy as that in Petitioner s objection to admission of the Exhibit was sustained and admission was denied. However, Captain Lamb then testified that the policy in 2007 basically was that force used must be reasonable and proper and that in his opinion what he observed in the video was not reasonable or appropriate. 2

3 Captain Lamb testified that the case was nearly four years old, there was no complaining victim, and the video had no audio. The case was pre-matrix and his recommendation was based on the old rules. He believed that a 4-day suspension was reasonable. On cross examination Captain Lamb testified that the DVD (Exhibit 2C) was submitted anonymously to Fox and that he had no knowledge of the motivation of the person who submitted it. He could not verify that the video was true and accurate or what edits may have been made. He stated that Officer Guzman had identified himself in the video. He believed the investigation file contained interviews of others involved in the incident and the creation of or custody of the original video. He did not recall what efforts were made to verify the accuracy of the video. He conceded that he had no basis on which to evaluate whether the video was full, complete and accurate. Captain Lamb was questioned about Exhibit I, the anonymous letter that was with the DVD when it was submitted to Fox 31 and read a sentence in it which stated, After the officer escorted the shoplifter out of the office he returned to follow up with the loss prevention team where you can see him clearly looking up at the ceiling looking for cameras. However, Captain Lamb stated that he did not recall the video containing that described event. He also testified that he did not know who wrote the letter or whether it was accurate. When asked about the incident in the video that portrayed Officer Guzman pushing the suspect into the wall, Captain Lamb testified that he knew something had happened and believed Officer Guzman s response was inappropriate. He was not sure what happened without any audio. Based on his experience and the fact that the suspect s hands were still handcuffed, he believed the suspect was defenseless and no indication was evident of any aggressive action, he felt Petitioner s action was too severe. If there had been a threat to the officer he agreed the officer should act for his own safety. He conceded that an officer could pick up cues from a suspect and it was possible there had been some cues but they were not visible in the video. An officer could use physical force depending on the cues but Captain Lamb could not see anything in the video. Based on his 30 years of experience he concluded that the use of force by Officer Guzman was inappropriate. He also testified that he disagreed with Commander Joe Montoya s recommendation of only a one-day suspension and with his conclusion that the charge against Guzman of failure to file a report was not sustained. He testified that under normal procedure Officer Guzman should have orally reported the incident involving his use of force to his supervisor and his supervisor would have filed the report. He conceded that there was no supervisory log and he was not sure who Officer Guzman s supervisor had been at the time. However, he testified that the fact that no report existed supported his conclusion that Officer Guzman had used excessive force. Captain Lamb testified that the suspect Adam David Lee refused to cooperate with the investigation and was not interviewed. The investigation also was hampered by the passage of time. 3

4 Captain Lamb testified although, a shoplifting incident is normally not an urgent call, that Exhibit B, the Incident Detail Report, showed the incident on 8/4/2007 was given a priority 2 because it involved a combative shoplifter. Captain Lamb also agreed Exhibit C, the Prisoner Inquiry Screen indicated that no injury was claimed or visible. He also testified that he believed that Lee was not injured and that Exhibit D, the booking photo of Mr. Lee did not show any injuries although the photo was somewhat unclear. He also testified that there was no mention of any inappropriate use of force in Exhibit E, Correspondence dated June 1, 2011 from Loss Prevention to Sgt Anthony Montoya. He testified and Exhibit F showed that Officer Guzman s past disciplinary history showed only minor items and no allegations of excessive force during his career. Captain Lamb testified as to Exhibit H, the portion of the Denver Police Department Operations Manual concerning internal investigations and specifically that at page 4, the policy provides that complaints should be fresh and not delayed because witness s memories fade and records lost. Despite the lengthy delay in this investigation he still felt Officer Guzman s force was inappropriate. He was not sure whether the Exhibit had been in effect in 2007 but it was at the time of the investigation. On re-direct examination, Captain Lamb testified that the IAB Investigation also contained witness interviews, including Amanda Lucken s statement regarding her observation of Officer Guzman pushing Lee into a wall and taking him to the ground. It also included interviews of other Kmart loss prevention employees or those specifically listed in Exhibit A. At this point in the hearing Petitioner moved the admission of Exhibits I, H, C, and D and those were admitted without objection. The Assistant City Attorney again moved for the admission of Exhibit 2(C). the DVD, and Counsel for Petitioner objected again due to lack of foundation and sufficient authentication. Again, the Hearing Officer withheld admission pending further testimony. Respondent called as its next witness Manager of Safety Alex Martinez. The Manager testified that he had agreed with Captain Lamb s recommendation and had imposed a 4-day suspension on Officer Guzman for Unnecessary Use of Force. He stated that he relied primarily on the depiction of events in the video (Exhibit 2. C). He too testified under a continuing objection while observing the video. He recalled that Officer Guzman was removing the second set of handcuffs when he thrust the suspect into the wall. He then took the suspect down to the floor. There was no audio on the tape and he could not see any movement between the two beforehand. He felt the video supplied all the necessary evidence for his conclusion. He recalled the statement of Amanda Lucken in the IAB file and testified it was his recollection that it supported what was depicted in the video. Manager Martinez testified that this was a pre-matrix case but while he didn t base his decision on the matrix, he did look at the matrix as a general guide. His decision was based on previous practices. He stated that inappropriate force is a problem inconsistent with the Department s mission. There was a wide range of possibilities but he concluded that four days suspension was appropriate. He indicated in arriving at that penalty that he 4

5 took into consideration that the evidence involved an anonymously submitted video recording, which he gave less weight to than he would have otherwise. Due to that and the staleness of the matter, he felt the suspension should be mitigated to the minimum. He wanted to be as generous and reasonable as possible to the officer. On cross examination the manager stated he concluded from the video that something clearly happened between Officer Guzman and Lee but he could not see Lee s hands on the video. He could not tell whether anything physical happened but thought possibly something verbal had occurred. He stated that at the end of the tape he observed Officer Guzman shaking his hands as though he was shaking off an injury. He also agreed that in reviewing the action of an officer in a situation with a suspect one should not look at it in hindsight but as if you were in the present with rapidly evolving events. In his review of the video he did not feel there were any rapidly evolving events. At this point the Respondent rested his case and Petitioner moved essentially for a directed verdict. The motion was denied in light of the pending evidentiary rulings. Petitioner called Corporal Al Archuleta as his first witness. Corporal Archuleta testified that he is a P.O.S.T. certified Instructor at the Denver Police Training Academy. He has taught arrest control and defensive tactics for 12 years. He testified that he is familiar with such disciplines taught by the FBI, the PBBCT, the Denver Police Academy, and also the Koga arrest control and defensive tactics system. All such tactics are acceptable and used in the Denver Police Department. He testified about his career experience also. He has had 34 years in the Denver Department, which consisted of 23 years on the street as a regular patrol officer, motorcycle officer, SWAT team, and Field training officer for eight years. He has evaluated approximately 750 trainees at the Academy and about 30 in field training. Corporal Archuleta testified that when handcuffing a suspect the arresting officer should react to protect himself if the suspect tenses up his arms. He stated that when that happens the officer should separate himself from the suspect even if handcuffed and escaping. However, if the suspect is handcuffed and resisting, then the officer should close the distance between them so they are as close as possible against a wall or taking the suspect to the ground. A handcuffed suspect is still a threat and could resist and cause injury. According to the video, at the point of the push into the wall and take down there had not been a search of the suspect for a weapon so Corporal Archuleta felt there was a real threat to the officer and others present. Based on his observation of the video, Corporal Archuleta opined that Officer Guzman s actions were appropriate. His assessment of what was depicted on the video was that the suspect had done something with his hands such as tensing them although there was no active resistance apparent. He had no issue with Officer Guzman pushing the suspect into the wall, especially since he had still not been searched. Due to the suspects behavior Officer Guzman s actions to maintain control of the suspect were justified. His pulling the suspect to the ground by his hair was clearly based on something the suspect said or did and was to get a better control position over the suspect. Use of the hair pull was to control the suspect s head. Where the head goes the body 5

6 follows. This was an acceptable technique under Koga method. Officer Guzman turned him away from his gun-side. What he did was consistent with his training and appropriate. At 7:55 on the video the suspect was not moving but was still not flat or prone on the floor. At 8:02 on the tape a second officer entered the room and helped to flatten him into a prone position. At 8:24 a cursory search of the suspect was done. It was appropriate for Guzman to keep his knee on the shoulder area of the suspect to help control him. It took them a long time to gain full control over the suspect. As late as 8:45 on the video he was still not cooperative. At 9:04 Officer Guzman had to shift his weight to maintain control. At 9:30 a thorough search was done and they stood up the suspect after gaining full control at about 9:54. On cross-examination Corporal Archuleta stated he did not see any overt action by the suspect. He also said slamming the suspect into the wall was not a technique specifically recognized in Koga. Guzman putting his face close to the suspects was also not a specific technique. Placing his hand on the back of his head or neck when he had the suspect against the wall was a control technique. He saw no indication of a threat by the suspect but he had not been searched. He stated that Guzman could have searched the suspect when he had him against the wall but doing so with him on the floor was better. He testified that the Koga technique was taught in the late 70 s. He did not train Officer Guzman on that technique in 2005 but Officer Guzman was a previously experienced officer and was P.O.S.T. certified. Petitioner Guzman took the stand as part of his case. He described his training and experience, which included Koga arrest and control training at the Sherriff s Academy and Boulder Police Department where he served for 17 years. He also testified that the Kmart was not in his patrol area but in 2007 he had to respond to calls there 2 3 times per day. Shoplifting was a frequent call at the Kmart and he recalled that usually the shoplifters were cooperative so a single officer would be sent. In such situations he would take the person to the patrol car and simply write a ticket and release the person. Officer Guzman was shown Exhibit B, page 1, the Incident Report, which indicated two officers responded, the level of the contact was P2 urgent, and SHOPC Shoplifter Combative. He testified he did not recall the incident or why he took the suspect to the wall. He stated that as a 40-year officer he had never experienced an allegation of excessive force. He was asked about Exhibit F, a summary of his disciplinary history. It showed he had two failures to attend court, which were 3 years apart. He explained one was because he was on vacation and failed to deal with the conflict and the other was due to a clerical error. The other two actions involved a traffic violation resulting in an oral reprimand and having a preventable accident that also resulted in an oral reprimand. Officer Guzman also testified from his observation of the video he believed the suspect moved his arms making it difficult to remove the Kmart handcuffs. The reason was the keyholes were pointed at the ground and hard to reach without the suspect s cooperation. He pointed out that after they had the suspect under control Guzman shook his hands and that indicated the suspect had done something that generated his reaction. He said he didn t 6

7 think that Lee made a verbal comment because when he had worked the jail there were lots of comments and he was used to not reacting to verbal abuse. When asked about pulling the suspect to the ground by use of his hair he referred to Exhibit G, which consisted of pages from A Primer for Law Enforcement by Robert K. Koga and William Pelkey, PhD., which show the use of the technique. He explained that the technique enabled him to take the suspect to the ground without injury. He stated the room was crowded and had two chairs by them; it was not an ideal spot. By use of that technique the suspect s head never hit anything. He testified that in his five years with the Sherriff he did many takedowns in small spaces. On cross examination Officer Guzman agreed he was called to the Kmart 2-3 times per day and so he had been there and was familiar with it. He agreed that the norm was that force was not needed. He did not recall whether weapons were found. He did not recall shaking his hand or why the video showed him doing so. He did not recall whether he filed a worker s compensation claim for any injury that day. He also testified that he did not recall using the hair pull technique since that incident. He testified that the ranking of the call as a 2 indicated there was potential for a weapon and danger. The Petitioner concluded his case at that point. All of Petitioner s Exhibits, A C and E - I, were admitted into evidence. Admission of Exhibit D was denied. Respondent s Exhibit 1, Departmental Order of Disciplinary action dated January 17, 2012 to Petitioner re: Internal Affairs Bureau (IAB) Case No P was admitted into evidence. The following Exhibits were admitted solely for the issue that the Manager of Safety relied on the documents in making his decision: Exhibit 2(A), Internal Affairs Bureau (IAB) investigation file upon which the discipline underlying this appeal was based (IAB Case No. P , Documents in IAB File No (Bates Nos. DENVER ); Exhibit 2(B), CD containing video recordings from the IAB File No of interviews by Commander Montoya of Diana Cornejo, Bhain Ward and Officer Guzman, and an audio recording of a phone interview by Commander Joe Montoya of Amanda Lucken; and Exhibit 2(C), contains a DVD containing Video of Incident from IAB File No The parties were directed to submit written summations together with legal arguments concerning whether Respondent s Exhibits 2(A), (B), and (C) should be admitted into evidence as proof of Petitioner s conduct in violation of RR-306. The parties were also directed to address the issue of the Civil Service Hearing requirement of the burden of proof and hearing de novo. The admission of Respondent s Exhibits 2 (A), (B), and (C), was held in abeyance pending the Hearing Officer s ruling. The parties duly submitted the requested summations and arguments. The nature of a Civil Service Commission (CSC) Hearing is set out in CSC Rule 12 8 (D). That rule provides in pertinent part that all hearings shall follow the provisions of Section (7), (8), and (9)(a) of the Colorado Administrative Procedure Act. It also 7

8 requires a hearing De Novo, that is considering the matter anew as if it had not been heard before and as if no decision previously had been rendered. The Manager of Safety shall have the burden of proof (by a preponderance of evidence) to justify any disciplinary action administered.the Hearing Officer shall rule upon the admissibility of offered evidence. CSC Rule 12 8(D)(1 and 2). The Respondent has two burdens in this case: to prove by a preponderance of the evidence that on August 4, 2007 Officer Guzman conducted himself in a manner that violated RR 306; and that the disciplinary sanction imposed was appropriate. The admission of Exhibits 2(A), (B), and (C) for the purpose of the truth of the matters therein remains to be determined. The exhibits were admitted for the sole purpose of showing what the Manager of Safety reviewed in reaching his conclusions. That purpose is significant to the second issue the appropriateness of the sanction imposed, but not the primary issue, proof of the conduct by Officer Guzman that Respondent asserts was in violation of RR 306. C.R.S (7) provides, in pertinent part, as follows: The rules of evidence and requirements of proof shall conform, to the extent practicable, with those in civil nonjury cases in the district courts. However, when necessary to do so in order to ascertain facts affecting the substantial rights of the parties to the proceeding, the person so conducting the hearing may receive and consider evidence not admissible under such rules if such evidence possesses probative value commonly accepted by reasonable and prudent men in the conduct of their affairs. Thus, hearsay evidence is admissible in Colorado in Administrative Hearings when it has probative value and is sufficiently reliable and trustworthy based on the circumstances of a particular case. Industrial Claims Appeals Office v. Flower Stop Marketing Corp., 782 P.2d 13 (Colo. 1989). Reports historically accepted in a type of judicial proceeding are considered reliable. Id. Indeed, an administrative decision based entirely on hearsay evidence is acceptable if the evidence is considered reliable and trustworthy. Colorado Dept. of Revenue, Motor Vehicle Div. v. Kirke, 743 P.2d 16 (Colo. 1987). Respondent s Exhibits 2(A), the IAB Investigative file, and Exhibit (B), the videotaped interviews of witnesses contained in the IAB file, are hearsay documents. Normally, hearsay is not admissible into evidence. C.R.E Here, it is a close question whether these Exhibits are entitled to admission under a common exception, such as CRE 803(6) reports kept in the regular course of police department business. Lannon v. Taco Bell, Inc., 798 P.2d 1370, 1374 (Colo. 1985), aff d on other grounds, 744 P.2d 43 (Colo. 1987). Their admission turns on whether Respondent presented sufficient evidence to authenticate the Exhibits and to establish an adequate foundation concerning their reliability (objections by Petitioner). The Assistant City Attorney argued, in part, that Exhibit 2(A) should be admitted because it contained the same document as Petitioner s Exhibit A, which included summaries of witness statements. However, Respondent s Exhibit 2(A) contained much more than Petitioner s Exhibit A, which was admitted by stipulation of the parties. Respondent presented no testimony about the process or nature of the investigation and 8

9 creation or maintenance of the IAB report aside from witnesses Lamb s and Martinez s testimony that in the course of their deliberations, they reviewed and relied on the reports. Respondent failed to present any evidence whether the IAB report was prepared and maintained in the regular course of police department business or concerning the reliability of the recorded interviews. As stated above, in order to accept hearsay evidence in an administrative hearing there must be evidence on which the agency may determine whether the evidence is reliable and trustworthy. Flower Stop Marketing Corp., supra; Kirke, supra. Therefore, without such evidence, the Hearing Officer concludes that Respondent s Exhibit 2 (A) (Bates Nos. Denver ) including summaries of witness interviews and 2 (B) are denied admission into evidence. The Recordings of interviews in the IAB File No , Diana Cornejo, Armanda Lucken, Bhain Ward, Officer Guzman, Exhibit 2(C) are also hearsay. As with Exhibit 2 (A), Respondent also failed to present any testimony supporting admission of Exhibit 2(B) under the business records hearsay exception in CRE 803 (6). Also, CRE 1001 and 1003 apply specifically to photographic and video evidence. With Exhibit 2(B) these rules do not appear to pose a problem concerning the submission of copies rather than originals, because Petitioner did not object on that ground. However, the authenticity of Exhibit 2(B) that the matter in question is what the proponent claims it is. must be established as required by CRE 901 (a). Also, evidence of their reliability and trustworthy nature must be presented as well. Respondent may have done this by presenting sufficient testimony to satisfy CRE 901(b) but did not do so. This may have easily been done by testimony but Respondent presented no testimony concerning the video and audio recordings of the witness interviews, how they were taken, or preserved other than Captain Lamb s brief testimony on cross examination and redirect that he believed the investigative file contained statements of witnesses Lucken and others who worked at Kmart and were there and Manager Martinez s testimony that he recalled reviewing Lucken s and other s statements. They did not testify about the process of taking or preserving those statements in the normal coarse of the Department and IAB operations. 2 In Respondent s Closing Brief, the Assistant City Attorney argues portions of the Operations Manual concerning the investigation. However, those portions of the manual were not introduced into evidence. Although Petitioner also could have subpoenaed and cross examined the witnesses whose statements were summarized in the reports. Id, the hearing officer hesitates to place that burden on Petitioner when the Respondent has the initial burden of proof in the hearing. Likewise, for the same reasons, Respondent s Exhibit 2(C), identified as DVD video of the Incident from the IAB file, is not admissible either. Testimony by Captain Lamb indicated that a copy of the video was provided to the Denver Police Department by Fox 31 News after it had received it anonymously with a cover letter. Respondent presented no 2 Witnesses Lamb s and Martinez s testimony simply did not address those matters. Had the City called Commander Sergeant Anthony Montoya from the IAB as a witness, who logically could have provided the necessary testimony about the IAB file and whether the witnesses he interviewed were reliable and trustworthy. However, he was not called to testify. 9

10 evidence establishing the video as the same as the original video made by Kmart loss prevention employees on August 4, Petitioner objected to the video based on Respondent s failure to authenticate it and on his assertion that the tape may have been edited or modified. Petitioner s objection falls under CRE 1001 and Petitioner pointed to Exhibit I, the anonymous letter that was with the DVD when it was submitted to Fox 31 in which a sentence stated, After the officer escorted the shoplifter out of the office he returned to follow up with the loss prevention team where you can see him clearly looking up at the ceiling looking for cameras. However, Captain Lamb stated that he did not recall the video containing that described event. He also testified that he did not know who wrote the letter or whether it was accurate. He also did not recall what efforts were made to verify the accuracy of the video. He conceded that he had no basis on which to evaluate whether the video was full, complete and accurate. 3 While the IAB Investigation included interviews of two Kmart loss prevention employees who may have been able to authenticate the video, Respondent did not have them testify at the hearing. Respondent only offered their interviews through a DVD, Exhibit 2 (B). 4 However, those also were not admitted into evidence. supra. The evaluation of this decision on whether to admit Exhibit 2(B) and 2(C) requires me to consider the following cautionary language: Videotapes, like photographs, are ordinarily competent to illustrate or explain anything a witness may describe in words, see Lanford v. People, 159 Colo. 36, 409 P.2d 829 (1966); People v. Avery, 736 P.2d 1233, 1238 (Colo.App.1986); Carl T. Drechsler, Annotation, Admissibility of Videotape Film in Evidence in Criminal Trial, 60 A.L.R.3d 333 (1974), but they are not the only, or necessarily the best, evidence of the events. Cf. People v. Newbrough, 803 P.2d 155, 161 (Colo.1990) (camera angles and lighting can affect juror's impressions and videotaped interviews can be used to present slanted or distorted testimony). Videotaped interviews, like other forms of evidence, are subject to the rules governing the admissibility of evidence and are not automatically admissible as original documents. Nor are they necessarily more probative than other evidence depicting the same events. People v. Saiz, 32 P.3d 441, at (Colo. 2001). While these comments and authority cited were made in the context of a criminal case, they are just as applicable in the context of an administrative proceeding. 3 Respondent attempted to authenticate the video through the testimony of Petitioner but other than his testimony identifying himself in the video and the detention room at Kmart he was unable to offer any testimony about the video s creation or custody in the interim after the incident. 4 Although the statements in that DVD are hearsay, if they had been adequately authenticated, the statements of Bhain Ward and Armanda Lucken may have established sufficient foundation to admit Exhibit 2(C). The lack of audio and possibility of editing would have only gone to the weight of the evidence. 10

11 In conclusion, the Hearing Officer also denies the admission of Respondent s Exhibit 2 (C). As a result of this ruling excluding the video the testimony of Captain Lamb, Manager Martinez, and Officer Guzman about what they observed on the video in Exhibit 2(C) is also excluded as to the truth of what occurred on August 4, Although Corporal Archuleta s testimony while observing the video was presented from the standpoint of his opinions concerning proper police training and techniques, it too must be excluded. To the extent that I have been able to separate out the testimony of these witnesses from their observation of the video, I have considered their testimony. FINDINGS OF FACT The following findings of fact are based on the admitted evidence. 1. On August 4, 2007 Officer Guzman and Officer J. Sartain responded to a call by loss prevention employee Diana Corral at the Kmart located at 363 Broadway St., Denver, Colorado at 16:52:26. The Incident Detail Report indicated the call concerned a combative shoplifter. (Petitioner s Exhibit B). 2. The Incident Report indicated the call was a level 2 or urgent. Normally, shoplifting calls are not considered urgent. (Captain Lamb). A single officer handles such calls; the suspect is ticketed and released. (Guzman). 3. The person arrested at that date and time was David Adam Lee. (Petitioner s Exhibit C). 4. Kmart s report of August 4, 2007 indicated that the suspect (Doe or Lee) would not give any identification information or even his name to their loss prevention person or Officer Guzman when he arrived. (Petitioner s Exhibit E). 5. In Officer Guzman s experience he typically wrote tickets to shoplifters and released them. He rarely had to place a shoplifter under arrest unless the dollar amount or warrants called for it. (Guzman). 6. Since the call was designated as urgent and indicated the suspect was combative, he believed there was potential for the situation to go badly. There was potential for weapons and danger. 7. There was no report of any injury to Lee by the Denver Sheriff s Department when he was booked as a prisoner. (Petitioner s Exhibit C). 8. Loss prevention employees at the Kmart did not indicate any injury to Lee or excessive force involved in Lee s arrest in their Case Report of August 4, 2007 or in their report to Sgt Anthony Montoya on June 1, (Petitioner s Exhibit E). 9. A videotape depicting alleged misconduct by Officer Rick Guzman in the Kmart arrest was given to the Denver Police Department Internal Affairs Bureau by Fox News on May 31, 2011, which it had received with an anonymous letter. (Petitioner s Exhibit A and I, and testimony of Captain John Lamb and Manager of Safety Alex Martinez). 10. The anonymous letter stated that the Denver Police Officer used Excessive force and that Kmart knew of the beating. (Petitioner s Exhibit I). 11

12 11. Based on that video and the anonymous letter submitting it to Fox 31 News, the IAB initiated an investigation into Officer Guzman s conduct in the arrest of Lee. (Petitioner s Exhibit A). 12. Although the complaint was more than three and a half years after the incident, Captain Lamb and Manager Martinez explained that good cause existed because of the seriousness of the alleged misconduct for the matter to still be investigated under the Denver Police Department Operations Manual Section 503-8(4). Subsection c. 2 of that provision states that Except for good cause, complaints of serious misconduct including inappropriate force, egregious acts of disparate treatment, or major rules violations should be filed within six (6) months of the incident. (Lamb). 13. The Department attempted to contact Lee and obtain his cooperation with its investigation but it was unable to do so. (Lamb). 14. Officer Guzman, in making the arrest and exchanging his handcuffs for the Kmart loss prevention employees on August 4, 2007, pushed Lee into a wall while maintaining control of the handcuffs and then took him down to the ground, using a hair pull technique. While he had the suspect on the ground Officer Guzman controlled him by placing his knew on the upper torso head/neck region of the suspect. (Petitioner s Exhibit A). 15. No physical threat to the officer was observed by the loss control employees present. They did observe the suspect to have an attitude towards Officer Guzman and make sarcastic remarks towards him. (Petitioner s Exhibit A). 16. There was no indication as to why Officer Guzman reacted to the suspect causing him to push the suspect into the wall or take him down to the ground. (Lamb and Martinez). Officer Guzman had no recollection why he took the suspect to the ground. The video did not refresh his memory and he could only speculate. (Guzman). 17. Officer Guzman had no recollection of the events related to the arrest of Lee on August 4, 2007 even after observing the video, which was shown to him when he was interviewed by IAB and at the hearing. He did acknowledge that he recognized the Kmart detention room and his image in the video. (Officer Guzman and Exhibit 2(C), admitted for the purpose of showing what Captain Lamb and Manager Martinez relied on in reaching their decisions). (Guzman). 18. There was no arrest paperwork and all associated paperwork and notes to the arrest were purged and shredded by Denver County Court s Records Section. There was no record or witness available to indicate whether or not Officer Guzman contacted a supervisor about the incident. (Lamb). 19. Captain Lamb relied primarily on his viewing of the anonymous video of the incident to reach his conclusion that Officer Guzman applied excessive force in his actions depicted by the video. He did also rely on the summaries of the witness statements contained in Petitioner s Exhibit A. He also concluded that Officer Guzman never reported the incident to his supervisor. As a result he recommended a 4-day suspension and a reprimand for failure to report. (Lamb). 20. Captain Lamb could not verify whether the video was true and accurate and he had no recollection of any attempts by IAB to verify its accuracy. He acknowledged that there was no audio with the video and so he could not 12

13 determine what was said between Officer Guzman and Lee. He did not recall whether the supervisor on duty was interviewed during the investigation. (Lamb). 21. Manager Martinez had access and reviewed the IAB file, including the witness statements, and the anonymous video. He relied primarily on the video and considered it the most pertinent evidence concerning the issue of use of force. The other matters were more of a background context. He believed Amanda Lucken s description of the incident supported his conclusion. (Martinez). 22. Manager Martinez concluded that Officer Guzman applied excessive force and imposed a four-day suspension. He felt that inappropriate force is a problem, because it is inconsistent with the basic mission and values of the Police Department and therefore Officer Guzman should be penalized. However, he imposed only a four-day minimal punishment in light of the mitigating factors including the fact that the incident was dated, it was reported anonymously, and there was no complainant, and because Officer Guzman s disciplinary record only contained two previous minor incidents. The case was pre-matrix but he looked at the Matrix as a guide. (Martinez). 23. Officer Guzman first entered the field of law enforcement when he was hired by the Denver Sheriff s Department in He was trained at the Sheriff s Training Academy where his training included the hair take down technique by Robert K. Koga and William L. Pelkey, Ph.D. Officer Guzman served with the Denver Sheriff s Department for five years. He used the technique at the jail. At the jail taunting comments by the prisoners was a common occurrence, which he was trained to ignore. (Guzman, Petitioner s Exhibit G). 24. On March 18, 1988 Officer Guzman joined the Boulder Police Department and underwent its complete training, which included FBI and Koga training. He received his P.O.S.T. certification. He also later received P.B.B.C.T. training, which indicated he could use his previous training. He also received specific FBI training on handcuffing. He was with the Boulder Police Department for 17 years, both on patrol and five years as a detective. He field trained other officers and evaluated their arrest technique. (Guzman). 25. On January 10, 2005, Officer Guzman was hired by the Denver Police Department and received training at the Lateral Police Officer Academy. (Guzman). All of his training emphasized the need to maintain control of a suspect in an arrest. The Koga system is still used and accepted by the Denver Academy although not taught. (Petitioner s Exhibit G, Archuleta). 26. In his 40 years of law enforcement service Officer Guzman had no allegations of use of excessive force until the anonymous complaint. (Guzman). 27. Officer Guzman s disciplinary history involved two failures to attend court for which he received oral reprimands. It also showed that he received oral reprimands for a traffic violation and for a preventable accident. (Petitioner s Exhibit F). 28. Corporal Al Archuleta is a P.O.S.T. certified Instructor at the Denver Police Training Academy. He has taught arrest control and defensive tactics for 12 years. He has had 34 years in the Denver Department, which consisted of 23 years on the street as a regular patrol officer, motorcycle officer, SWAT team, 13

14 and field training officer for eight years. He has evaluated approximately 750 trainees at the Academy and about 30 in field training. (Archuleta). 29. Corporal Archuleta testified that he is familiar with such disciplines taught by the FBI, the PBBCT, the Denver Police Academy, and also the Koga arrest control and defensive tactics system. All such tactics are acceptable and used in the Denver Police Department. (Archuleta). 30. The purpose of the hair takedown technique allegedly employed by Officer Guzman on August 4, 2007 was for the purpose of guiding a suspect to the ground in the direction of the pull of the head the body follows the head. It was taught for the purpose of avoiding potential injuries to a suspect, particularly in a small space. (Guzman, Archuleta). 31. An officer is trained to sense cues or signals from a suspect when handcuffing such as tensing his hands and arms and react to maintain control. (Archuleta). 32. A handcuffed suspect is still a danger to police officers and others. If a handcuffed suspect is resisting an officer should close the distance, get as close as possible with the suspect, against a wall or taking the suspect to the ground. While on the ground an officer maintains control of a suspect by placing his weight on the suspect. (Archuleta). 33. A suspect is a threat to the officer and others even if handcuffed if he has not been searched. (Archuleta). CONCLUSIONS OF LAW AND DECISION Under the Civil Service Hearing Rules hearings shall follow the provisions of Section (7), (8) and (9)a) of the Colorado Administrative Procedure Act. The hearing is de novo and the Manager of Safety shall have the burden of proof (by a preponderance of evidence) to justify any disciplinary action administered. CSC Rule 12 8 (D)(1) and (2). Although CSC Rule 12 9(B)(1) provides that the hearing officer is to give due weight to the necessity of the Manager to maintain administrative control of the respective department, that does not equate to simply yielding to the Manager s conclusion or decision. Based on the evidentiary rulings excluding Respondent s Exhibits 2(A), (B), and (C) for the purpose of showing the truth of the matter asserted fully discussed above and the Hearing Officer s Findings of Fact based on the admitted evidence, the Hearing Officer concludes that the Respondent failed to meet his burden of proof to support his conclusion that Officer Guzman violated RR-306 Unnecessary Force on August 4, 2007 in the arrest of David Adam Lee. In light of that conclusion, CSC Rule 12 9 (B) (3), requiring that the hearing officer not merely substitute their judgment for that of the Manager of Safety as to the level of penalty imposed, has no application here. Based on the evidence I am only able to conclude that Officer Guzman exerted necessary control over suspect Lee in the course of his arrest of him. There is no evidence that his actions exceeded reasonable force or were outside accepted tactics. 14

15 Because of my conclusion that no unreasonable force was proved by Respondent, there is no necessity of analyzing the Manager s imposition of discipline, including consideration of Exhibit 2 (C) in that regard, except to conclude that the penalty was unwarranted. ` The Hearing Officer hereby orders: ORDER 1. The decision dated January 17, 2012 finding Petitioner in violation of RR-306 of the Operations Manual, Unnecessary Force is reversed. 2. The imposition of 4-day suspension without pay for violation of RR-306 on Officer Guzman is also reversed and shall not be imposed. NOTICE OF APPEAL RIGHTS Pursuant to Charter (E), and Rule 11 (A)(1 and 2), the decision of the Hearing Officer may be appealed to either the Civil Service Commission, or directly to District Court. Any appeal to the Commission shall be initiated by filing a Notice of Appeal with the Commission, within fifteen (15) calendar days of the date noted on the certificate of service of the Hearing Officer s decision by the Commission. Any appeal to District Court shall be initiated in accordance with the Colorado Rules of Civil Procedure currently in effect. DONE AND SIGNED THIS 13 th DAY OF AUGUST */s/ Timothy R. Arnold Timothy R. Arnold Hearing Officer *The original signed Order is filed with the Civil Service Commission. 15